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Federal Court of Australia |
Last Updated: 22 June 2001
"W148/00A" v Minister for Immigration & Multicultural Affairs [2001] FCA 679
MIGRATION - application for protection visa - Refugee Review Tribunal decision based on finding on credibility - whether appellant identified and made out a ground for review.
Migration Act 1958 (Cth) ss 36, 430, 476, 476(1)(b), (c), (e), (g), 476(4)
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 considered
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 considered
Reg v Ministry of Defence; Ex parte Smith [1996] QB 517 considered
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 referred to
Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910 referred to
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 referred to
Abebe v Commonwealth [1999] HCA 14; (1997) 197 CLR 510 considered
Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 referred to
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 referred to
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 referred to
Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 451 at 469 considered
Reg v Secretary of State for the Home Department; Ex parte Bugdaycay [1986] UKHL 3; [1987] AC 514 considered
Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 considered
Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167 considered
"W148/00A" v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 148 OF 2000
LEE, TAMBERLIN & R D NICHOLSON JJ
PERTH (HEARD VIA VIDEO-LINK)
22 JUNE 2001
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
BETWEEN: |
"W148/00A" APPELLANT |
AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT |
JUDGES: |
LEE, TAMBERLIN & R D NICHOLSON JJ |
DATE: |
22 JUNE 2001 |
PLACE: |
PERTH (HEARD VIA VIDEO-LINK) |
LEE J:
1 For cause made apparent in the following reasons, an order should be made that the identity of the appellant not be disclosed and that he be referred to in the title of the proceedings as W148/00A.
2 The joint reasons of Tamberlin and R D Nicholson JJ set out the relevant facts and it is unnecessary to repeat them other than to expand certain parts thereof.
3 In this appeal, as in the application for review heard by Carr J, the appellant, who does not speak English, was unrepresented. The appellant appeared by video-link from the Port Hedland Detention Centre and his submissions were conveyed to the Court by an interpreter present in the Court at Perth.
4 The appellant's ground of appeal read as follows:
"In Connection to appeal Sought in federal Court of Australia the judgment did not Consider the relevant immigration Law (Act 1958) Concerning the person in fear of persecution under United Nations Convention for Status of Refugee outside of his Country of usual residence and United Nations Protocol 1967.There was no evidence or other material to justify by making of the decision that the applicant did not have a well-founded [fear] of persecution by reason of his political opinion real or imputed.
[T]he possibility of just disappearing is a danger for a returned asylum-seeker in Iran. Immigration Law 42 of 1998."
As understood by the Court, the grounds of appeal challenged indirectly the judgment of the learned primary judge by seeking to set aside the decision made by the Refugee Review Tribunal ("the Tribunal") for errors made by the Tribunal.
5 The decision to be made by the Tribunal, under s 65 of the Migration Act 1958 (Cth) ("the Act"), was whether it was satisfied that criteria prescribed for a protection visa had been satisfied. In effect the Tribunal had to determine if it was satisfied that the appellant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. (See: s 36 of the Act).
6 As stated by Gibbs J in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119, cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275-277 per Brennan CJ, Toohey, McHugh and Gummow JJ, a statutory right made dependent upon an authority being "satisfied" of the existence of certain matters specified in the statute may be said to involve a decision of subjective nature, but it is nonetheless a decision subject to judicial review at common law on the usual grounds. His Honour noted, however, that where the matter on which the authority is required to be satisfied is a matter of opinion, policy or taste, it may be difficult to establish a relevant ground for review, given that the exercise of power in such a case is more akin to the exercise of a discretion.
7 If the matter in which a decision-maker is required to be satisfied excludes a matter of opinion, policy or taste, the difference between a determination of fact, and satisfaction as to the existence of matters prescribed by the Act, will be slight, in so far as the application of principles of judicial review is concerned.
8 Sir Thomas Bingham MR expressed a like opinion in Reg v Ministry of Defence; Ex parte Smith [1996] QB 517 at 556 in affirming that an unreasoned administrative decision based on policy considerations was nonetheless subject to judicial review:
"The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations."
9 The Act does not provide that the grant or refusal of a protection visa depends upon the exercise of a discretion by the Minister, or the Tribunal. As a condition precedent to the discharge of the statutory obligation to grant or refuse a visa, the Minister, or the Tribunal, must determine if the satisfaction required by the Act is met by first determining all material questions of fact. (See: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 per Gummow J at [119].)
10 Under the Act, the Minister, or the Tribunal, has to determine as a fact whether that entity is satisfied that there is a real risk that an applicant may suffer persecution if returned to the country of nationality of that person. The administrative function prescribed by the Act must be carried out "judicially", or as an "adjudication", in that the Minister, or Tribunal, must consider and determine whether the relevant material is able to "satisfy" the decision-maker as to the existence of certain matters. That is a function carried out according to law, not by exercise of a discretion to accept or reject material at will. Where the satisfaction is attained by findings or inferences of fact not supported by probative material or logical grounds, judicial review of the decision may follow. (See: Eshetu per Gummow J at [145].)
11 The claim made by the appellant in support of his application for a protection visa was that his life would be at risk if he were returned to Iran. The appellant claimed he would be executed. The Tribunal accepted that on the account given by the appellant, he would face "grave consequences" if returned to Iran.
12 The appellant is thirty-five years of age. On 12 April 1999, the Deputy Chief of General Staff of the Iranian Armed Forces, General Sayed Shirazi, was assassinated in Tehran. The Mujahadeen ("MKO"), an organisation opposed to the Iranian regime, claimed responsibility for the act and described the deceased officer as a "butcher" of Mujahadeens and Kurdish people. Iranian authorities stated that "a terrible revenge" would be exacted.
13 The appellant claimed that soon after the assassination, he and colleagues at his workplace in Esfahan discussed the incident and in the course of that discussion the appellant expressed a view that the death of the General was justified. According to the appellant, on the following day, 13 April 1999, he was arrested at his workplace and taken away for interrogation, in the course of which it was alleged by his interrogators that he was "an anti-revolutionary traitor" and a member of a group connected to the MKO. The appellant denied membership of any group. He was beaten and kicked and a tooth was broken. He was forced to sign a statement prepared by his interrogators. Thereafter it was ordered by a Revolutionary Court that his detention be continued. He was held in solitary confinement for three months during which time he was tortured, suffering, amongst other injuries, a broken left hand that, he says, remains deformed.
14 By June 1999 his health had deteriorated. He was unable to be treated at the prison medical centre and was taken to a hospital in Esfahan. He was recognised by a member of the hospital staff who immediately informed a friend of the appellant. That night, with the assistance of the friend of the appellant and the appellant's brother, the appellant made his escape from the hospital. Over the next two days the appellant was taken by his brother, and others, to Pakistan.
15 In carrying out the review the Tribunal conducted a hearing, in which the appellant appeared before the Tribunal in Sydney by video-link from the Port Hedland Detention Centre and an interpreter assisted the Tribunal in Sydney. The deformed hand that the appellant claimed had been caused by torture suffered in prison in Iran, was not examined.
16 In the written statement provided by the Tribunal, as required by s 430 of the Act, to explain how its decision had been made, the Tribunal said that:
"On the one hand, the Tribunal is mindful of the need to give the [appellant] the benefit of the doubt. The Tribunal is also mindful of the fact that the [appellant] has been consistent in his claim as to the reason which provoked his detention and his subsequent alleged flight from Iran. Also, the country information as to Iran indicates that the Iranian authorities do in fact target people suspected of supporting the MKO, and that the authorities were especially vigilant towards the MKO after the MKO assassination of Sayyad Shirazi [sic]. The Tribunal is also mindful of the seriousness of the [appellant's] claims, and therefore grave consequences if the Tribunal incorrectly assesses his claim as lacking credibility. Also, the Tribunal has considered the fact that the [appellant] appeared to it at the hearing as genuine, and Mr Massali (letter received by the RRT on 30 December 1999) also thought the applicant to be genuine in his claims of detention and torture."On the other hand, the Tribunal notes that it has found above that it is implausible that if the [appellant] was a MKO suspect in detention, he would have been left unguarded and/or unsecured in hospital, it is implausible that he could have made the journey from Iranshahr to Pakistan as he said, it is most unusual that the authorities would not have contacted his family after his alleged escape if in fact he had escaped, and it is implausible that he would have omitted to state before the hearing that he engaged in illegally taping and distribution [sic] of tapes, of MKO satellite broadcasts if in fact he had engaged in this activity. After carefully considering the [appellant's] claims, the Tribunal finds the [appellant] is not a credible witness, given his fabrication of the claim as to taping satellite broadcasts, and the implausibility of his escape. The Tribunal does not accept any of the [appellant's] claims as to his political opinion and detention and torture in Iran for his political opinion as genuine, since even the original claim is tainted by the improbability that he, an MKO suspect, would have been taken to hospital and/or not secured while he was in hospital. After considering all the evidence, the Tribunal is not satisfied that the [appellant] has a well-founded fear of return to Iran, nor that if he returns to Iran, he will face a real chance of persecution for a Convention reason."
17 The statement of reasons provided by the Tribunal requires further examination in respect of the four findings relied upon to ground the conclusion that the appellant's claims could not be accepted.
18 As stated by Tamberlin and R D Nicholson JJ, where the Tribunal purports to ground its decision on a question of credibility the Tribunal will not have made a finding on credibility by simply asserting that a claimed event is "implausible" or "highly unusual". In that regard I repeat what I said in Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910 at [26]- [40], in particular, the risk that decisions in these matters may be moulded to turn on so-called issues of credibility.
19 In their reasons, Tamberlin and R D Nicholson JJ say that some of the matters on which the Tribunal based its finding of credibility appeared to be somewhat tenuous and not sufficient to warrant a conclusion that the appellant's claim should not be accepted, but the cumulative weight of the matters referred to by the Tribunal permitted it to reach that conclusion. For the following reasons, I am of the opinion that the cumulative weight of that material was, at best, slight.
20 First, the Tribunal said it was "implausible" that if the appellant was an MKO suspect in detention he would have been left unguarded and/or unsecured in hospital and "highly unusual" that as such a suspect that he was taken to hospital at all. Earlier in its reasons the Tribunal had said it was "implausible" that even if sick the appellant was not handcuffed to the bed and/or locked in the "prisoners' room".
21 A circumstance is "implausible" if it is beyond human experience of possible occurrences, that is to say, inherently unlikely. The Tribunal had no material before it to be able to say that in Iran it was inherently unlikely that the appellant would be taken to hospital for treatment from a place of detention or could escape from custody whilst a patient in such a hospital. As Tamberlin and R D Nicholson JJ stated, the Tribunal engaged in speculation.
22 Second, the Tribunal said it was "implausible" that the appellant could have made the journey from Iranshahr to Pakistan as he claimed. As Tamberlin and R D Nicholson JJ stated in their reasons, that finding was rather tenuous in that the possibilities for time and mode of flight were inconclusive according to the material before the Tribunal. Furthermore, I would add that there was no fact found or accepted by the Tribunal that made the appellant's account inherently unbelievable.
23 Third, the Tribunal said that it was "most unusual" that Iranian authorities had not contacted the appellant's family if the appellant had escaped from detention. For its awareness of steps taken by Iranian authorities, the Tribunal relied on such information as the appellant was able to provide. In its reasons the Tribunal set out a summary of what was said by the appellant at the hearing conducted by the Tribunal. Transcript of the hearing was not part of the material before the Court. The relevant summary was as follows:
"The Tribunal asked the [appellant] when was his first contact with his parents after he was released from detention. The [appellant] said that that [sic] the first contact he had with home after he was released from detention was when Hamid telephoned Reza. When he arrived in Pakistan he wanted to dial a neighbour's telephone number to contact his parents, but he was not `successful'. The next day, he arrived in Malaysia and telephoned, on a mobile telephone, the neighbour and spoke to his father. The last time he spoke to his family was two weeks after he was put in detention in Australia, when he spoke to his younger brother through the neighbour's telephone; he told his brother he had arrived safely and told them to be `careful'. The Tribunal asked whether his family had said anything to him since he left Iran about adverse events like visits from the authorities; the [appellant] said he and his family `have been scared to talk about things', and that he had not been told of any adverse incidents. The [appellant] said he told his brother not to tell anyone he had left Iran."
24 The appellant was placed in "immigration detention" at the end of July 1999. Accordingly, the appellant last spoke to his family in about mid-August 1999. That date would have been approximately two months after the appellant left Iran and two weeks before the appellant was interviewed by an officer of the Minister's Department, acting as the Minister's delegate, preparatory to the making of the decision by that delegate to refuse the grant of a visa.
25 Later in its reasons under the heading "Findings and Reasons", the Tribunal stated as follows:
"Last, the Tribunal notes that the [appellant's] evidence was that he last spoke to his family two weeks before the hearing, and up to that time, no adverse incidents such as visits from the authorities had been told to him as having occurred to his family, which the Tribunal finds most unusual if the [appellant] was in fact a person who was detained for three months as an MKO suspect and he had escaped custody. The Tribunal finds that if the family had in fact been contacted, it is implausible that they would not have told the [appellant] when he contacted them."
26 There are two points to note about the foregoing. First, if the Tribunal stated that the appellant told it that he last spoke to his family two weeks before the Tribunal hearing on 20 December 1999, then, on the material set out earlier, the Tribunal misstated the substance of the appellant's evidence, which was to the effect that he had spoken to his family two weeks before the interview with the Minister's delegate. Second, the appellant told the Tribunal that in that conversation in August 1999, his family was "scared to talk about things", which, it may be assumed, would include discussion about visits by authorities. The country information before the Tribunal was sufficient to show that the family would have had due cause to exercise such care in any telephone conversation they had with the appellant if the circumstances were as the appellant described.
27 Whatever the Tribunal meant by its statement that it was "most unusual" that authorities had not contacted the appellant's family, the reasons of the Tribunal display that it misapprehended the relevant evidence and, furthermore, that it had no evidence before it to show that such contact had not been made.
28 Fourth, the Tribunal said it was "implausible" that the appellant would have omitted to state before being examined by the Tribunal that he had "engaged in illegally taping and distribution [sic] of MKO satellite broadcasts if in fact he had engaged in this activity."
29 The first thing to say about this finding of "implausibility" is that it appeared to be in respect of an irrelevant issue and provided an unsafe foundation on which to purport to make a finding that the appellant had fabricated his account of that activity. The summary provided by the Tribunal of the appellant's evidence in this regard was as follows:
"The Tribunal asked the [appellant] whether he was ever a member of any political group; he said he was not a member of any political group but he was a `supporter' of the Mujahadeen. The Tribunal asked the [appellant] whether he had any activities with the Mujahadeen; the [appellant] said he had no `physical activities' but, he said, `coming to the ideas and ideologies, I have been in touch with my friends and those people who I knew in that regard'. The Tribunal asked him what contact, if any, he had with the Mujahadeen; the [appellant] said that he spoke to his friends about the `messages' he received `on the satellite'. The Tribunal asked the [appellant] to elaborate. The [appellant] said because of the ideologies he had, he and a friend...listened to the `Voice of Mujahadeen' and to the ideas given in the broadcast. They taped from satellite television the speeches about twice a week, and passed them to their friends and `trusted people'. They distributed the tapes to about four people; the [appellant] distributed the tapes to...and...took two tapes and distributed them to two others, and these people distributed the tapes to others. They did this from 1994 about two months after the [appellant] returned to Isfahan [sic] and at first, lived with...and the last time they taped Mujahadeen programmes was a week before the [appellant] was detained. The Tribunal asked why the [appellant] had not mentioned this before if it was true; the [appellant] said he was not asked questions about his political activities before. The Tribunal noted that it had listened to the tape of his Departmental interview and its memory was that he was asked questions about his political activities, but the Tribunal would listen to the tape again before deciding this issue."
30 The statement of reasons provided by the Tribunal did not refer to the contents of any "tape of [a] Departmental interview".
31 The appellant did not claim that he had left Iran fearing persecution by reason of any political acts or expression of political opinion in support of the Mujahadeen. His claim was that he had been arrested and interrogated as an alleged member of the Mujahadeen, membership being imputed to him by reason of the unguarded statement he had made on the assassination of an important member of the Armed Forces of the ruling regime. The taping of Mujahadeen broadcasts, and the exchange and discussion of their contents, was carried out privately between long-term friends. The appellant made no proclamation in Iran of support for the Mujahadeen, nor did he use the tapes of MKO broadcasts for political ends. The appellant's fear of persecution rested on the political opinion imputed to him by Iranian authorities as the result of a described event, not on the fact that he viewed, recorded, exchanged and discussed MKO television broadcasts with friends. The latter events were of no importance to his claim of a well-founded fear of persecution. It was unlikely, therefore, that the expansion of the Tribunal interview to include discussion of the attention the appellant gave to Mujahadeen television broadcasts, could suggest that the responses of the appellant in that respect involved recent invention of a claim to a political profile from which it could be concluded that the whole of his claim of fear of persecution could be dismissed.
32 In its reasons the Tribunal added the following as a ground to support the conclusion that the appellant had engaged in recent invention of "political activities":
"The Tribunal noted that in the Departmental interview, when the [appellant] was asked about the goal of the Mujahadeen, he said only that the Mujahadeen wanted to topple the current regime which appeared inconsistent with the [appellant's] detailed evidence at the hearing as to the goal of the Mujahadeen."
33 The only "detailed evidence" recorded in the reasons of the Tribunal as that given to it by the appellant at the hearing was as follows:
"He said that the ideology of the Mujahadeen `is to destroy the bloodthirsty regime of Iran which is cruel and tyrant (sic).'"
34 If that was all there was, the purported difference to which the Tribunal referred did not exist.
35 For the foregoing reasons I am of the view that there is little cumulative weight in the matters relied upon by the Tribunal to ground the decision that it was not satisfied that the appellant had a well-founded fear of persecution if returned to Iran.
36 Another mind called upon to make a decision on the appellant's claims in place of the Tribunal may have considered that reason dictated that it could not be said that the appellant's claims were inherently unbelievable, in which event that decision-maker may have decided that there was a real chance that the appellant would suffer persecution if returned to Iran. As acknowledged by the Tribunal, on the account provided by the appellant, the risk that the appellant would suffer persecution was obvious. However, establishing that the material before the Tribunal was sufficient to satisfy a properly instructed Tribunal that the appellant had a well-founded fear of persecution does not, in itself, establish a ground for review under s 476 of the Act.
37 More must be done to show that the decision-making power miscarried. If material not inherently improbable is dismissed by a decision-maker, who relies upon no more than an assertion that the material is "implausible" or "not credible", such an act by the decision-maker may attract judicial review under the Act. That is to say, in some cases a bare statement by a decision-maker that a claimed circumstance is "not credible" or is "implausible" may cloak the failure of the decision-maker to address and resolve a material question of fact and thereby fail to take into account a relevant consideration; or suggest that the decision-making power was exercised arbitrarily or capriciously; or that a finding on a material question of fact was irrational, not being supported by probative material or logical grounds; any of which may demonstrate "jurisdictional error" and a failure to perform the decision-making function reposed in the decision-maker by the Act. If so, one or more of the following grounds for review may arise: incorrect interpretation or application of the relevant law (s 476(1)(e)); absence of jurisdiction to make the decision (s 476(1)(b)); the making of a decision not authorised by the Act (s 476(1)(c)); or perhaps the absence of evidence or other material to justify the making of the decision (s 476(1)(g), 476(4)). (See: Eshetu per Gummow J at [136], [145] and [154]; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 per McHugh, Gummow and Hayne JJ at [80]-[83].)
38 In terms, the appellant's grounds of appeal submitted that the Tribunal did not apply correctly the relevant law. For the following reasons I am satisfied that the statement of reasons of the Tribunal discloses that the Tribunal did not carry out correctly the task assigned to it by the Act by reason of either an incorrect interpretation of the applicable law or incorrect application of that law to the facts.
39 A fair reading of the reasons of the Tribunal is that the Tribunal regarded the events described by the appellant as being so unusual as to be unpersuasive and that the Tribunal could not conclude that such events had occurred. Although the Tribunal stated that the appellant was not a "credible witness", that statement did not proceed from any adverse comment upon the appellant as a witness nor from any finding of dishonesty on the part of the appellant. Indeed, to the contrary, the Tribunal accepted that the appellant appeared to the Tribunal to be genuine.
40 For its statement that the appellant was not a "credible witness", the Tribunal relied upon no more than the failure of the appellant to persuade it that the events described by the appellant had occurred. If the Tribunal understood that if it were not persuaded by the appellant's account, it followed that the appellant was not a "credible witness" and that his claims could be ignored, it failed to interpret and apply correctly the relevant law.
41 The decision the Tribunal had to make was whether the appellant had a well-founded fear of persecution. In the performance of that task, the Tribunal could not exclude any relevant matter from its consideration. In determining whether the appellant's fear, namely, that he would suffer persecution in the future if returned to Iran, was well-founded, the Tribunal had to look at all matters, with the application of appropriate balance, and ask itself if there was a real risk that such persecution may occur. Notwithstanding that the Tribunal may not have been persuaded that past facts relied upon by the appellant had occurred as claimed by the appellant, any assessment of the degree of risk of persecution facing the appellant in future had to take those claimed events into account. As Gleeson CJ and McHugh J stated in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [83], the fact that an applicant "might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail. As Guo [1997] HCA 22; (1997) 191 CLR 559 at 575-576 makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal `must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution' Guo [1997] HCA 22; (1997) 191 CLR 559 at 576."
42 After considering the Australian cases (Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra); Minister for Immigration and Ethnic Affairs v Guo (supra); Abebe v Commonwealth (supra); Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719) which govern the law applied by this Court, and obtaining substantial assistance therefrom, Brooke LJ, with whom Robert Walker LJ agreed, encapsulated the relevant principle as follows in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11; [2000] 3 All ER 449 at 469-470:
"For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur."
43 Of course, if the Tribunal forms a positive view that an applicant is not a credible witness by reason of patent inconsistencies or dishonest statements in the applicant's account, the Tribunal is not bound, as it otherwise would be, to consider whether there was a real chance that events may have occurred as claimed, in assessing whether there was a real chance that events feared by the applicant may occur in the future. (See: Abebe per Gleeson CJ and McHugh J at [85].)
44 This matter was not such a case. Although the Tribunal included words in its reasons to the effect that the appellant was not a credible witness, as noted above the reasons of the Tribunal show that the Tribunal was concerned with identifying the doubts it held with respect to the appellant's account and why it had not been persuaded that events had occurred as described, not with making a positive finding on found facts that the appellant was dishonest or untrustworthy.
45 For the foregoing reasons, ground for review under s 476(1)(e) of the Act has been established.
46 Furthermore, in terms, the grounds of appeal also raised the issue whether the country information available to the Tribunal put the Tribunal on notice that the making of a claim for asylum was, itself, a circumstance to be considered to determine whether the appellant had a well-founded fear of persecution if returned to Iran. The question of law entailed therein was whether there had been "jurisdictional error" in the making of the decision and ground for review thereof arising under s 476(1)(b), (c) or (e) of the Act, in that the Tribunal had ignored relevant material in purporting to make its decision. (See: Yusuf per McHugh, Gummow and Hayne JJ at [76]-[83].)
47 The reasons of the Tribunal showed that no attention was given to whether the appellant would be at risk of persecution if Iranian authorities were aware that the appellant had applied for asylum in Australia. In the light of the material before it and the obligation of the Tribunal to have regard to all relevant matters, the Tribunal had to assess whether the beliefs expressed by the appellant in support of his claim for asylum would expose the appellant to the risk that Iranian authorities would impute to the appellant the political opinion of a member of the MKO and treat him accordingly. It is to be noted that disclosure of the identity of the appellant and of the nature of his claims was not restricted by any order of the Tribunal.
48 Although the appellant was unable to assist the Court with submissions on his grounds of appeal or on the law, being unable to speak or understand English, not being represented by counsel, and appearing in Court only by video-link without an interpreter present with him at the Detention Centre to interpret the proceedings to him as they occurred, in the end the material before the Court spoke for itself to establish the grounds of appeal relied upon.
49 As conceded by the Tribunal, this is a case of "grave consequences if the Tribunal incorrectly assesses [the appellant's] claim". An equally heavy onus falls upon the Court in determining whether judicial review should be granted. As noted by Lord Bridge in Reg v Home; Secretary of State for the Home Department; Ex parte Bugdaycay [1986] UKHL 3; [1987] AC 514 at 531:
"I approach the question raised by the challenge to the Secretary of State's decision on the basis of the law stated earlier in this opinion, viz. that the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the court's power of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."
Lord Templeman (at 537-538) endorsed that view:
"In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process. In the case of Mr. Musisi, a first reading of the evidence filed on behalf of the Secretary of State and Mr. Musisi, gives rise to a suspicion that the dangers and doubts involved in sending Mr. Musisi back to Kenya have not been adequately considered and resolved. As a result of the analysis of the evidence undertaken by my noble and learned friend, Lord Bridge of Harwich, I am not satisfied that the Secretary of State took into account or adequately resolved the ambiguities and uncertainties which surround the conduct and policy of the authorities in Kenya."
50 I would allow the appeal on the grounds set out above, set aside the decision of the Tribunal and return the matter to the Tribunal for reconsideration according to law.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. |
Associate:
Dated: 22 June 2001
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
W 148 OF 2000 |
BETWEEN: |
"W 148/00A" APPELLANT |
AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT |
JUDGES: |
LEE, TAMBERLIN AND R D NICHOLSON JJ |
DATE: |
22 JUNE 2001 |
PLACE: |
PERTH (HEARD VIA VIDEO-LINK) |
TAMBERLIN AND R D NICHOLSON JJ:
51 The appellant arrived in Australia on 30 July 1999 and on 25 August he filed an application for a Protection Visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 27 October 1999 a delegate of the Minister for Immigration & Multicultural Affairs ("the Minister") refused to grant a Protection Visa and on 2 November 1999 the appellant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. The Tribunal affirmed the delegate's decision not to grant a protection visa and published its Decision and Reasons on 21 January 2000. An application for review was made to the Federal Court and was heard by Carr J who, on 8 August 2000, dismissed the application. This appeal is from the decision of Carr J. The reviewable errors said to have been made by the Tribunal are those set out in s 476(1)(e) and (g) of the Act.
52 The appellant claims that he is a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Article 1A(2) of the Convention defines a refugee as any person who:
"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country..."
53 The appellant claims that he is at risk of persecution in Iran because of his political opinion. He said that when a military leader, Sayed Shirazi ("Shirazi"), was murdered on 10 April 1999 he mentioned to his work colleagues that he thought it was a good thing that Shirazi had been killed. He claimed that the next day he was detained and accused of being part of the MKO which was an organisation claiming responsibility for having killed Shirazi. He said he was confronted with MKO pamphlets which had been taken from his home. He said that he spent three months in detention during which time he was mistreated and his physical condition deteriorated. After this time, the appellant said, he was transferred to a prison hospital and then to a public hospital and, with the help of friends, he escaped from the hospital, via Pakistan and Malaysia, to Australia. At the hearing before the Tribunal the appellant made a new claim that twice a week during the five year period from 1994 to 1999 he and a friend had taped television broadcasts from the MKO on the friend's satellite and distributed the tapes to four others who in turn distributed the tapes to their friends. He claimed that he had read MKO publications in 1981 before the MKO were banned and he had writings of a school friend which explained the MKO ideology.
FINDINGS AND REASONS OF TRIBUNAL
54 The Tribunal found that the appellant in the hearing appeared to be genuine. The Tribunal considered that the country information indicated that the authorities in Iran had detained people, including those suspected of association with the MKO, on account of their political opinion. It was also accepted that after the assassination of Shirazi the authorities made strong statements against the MKO and its supporters. It found that the appellant was able to describe accurately how Shirazi was killed but that those circumstances had been widely publicised in Iran. In addition, the Tribunal accepted that although satellite dishes were banned by Iranian authorities in 1995, the country information indicated that during the period the appellant claimed he was taping and distributing tapes the MKO did make regular transmissions from Iraq into Iran. However, the Tribunal noted that there were several aspects of the appellant's claim which led it to have "reservations" about the appellant's credibility. It then proceeded to set out six matters which it had taken into account.
55 The first of these matters was that the appellant's evidence at the hearing differed in matters of substance to his evidence in his airport interview. However, the Tribunal accepted the appellant's explanation of these differences as reasonable and said it placed no importance on them.
56 The second matter was that, in the view of the Tribunal, it appeared to be "highly unusual" that the authorities would have taken a person detained as being a suspected member of the MKO to hospital and "implausible" that, even if he were sick, he would have been left unguarded and not handcuffed to the bed or locked in a room. A finding that circumstances are highly unusual is, of course, not the same as a finding that an event did not occur. Moreover, there does not appear to us to be anything inherently implausible about an unguarded ill or injured member or sympathiser of the MKO not being handcuffed to a bed or locked in a room.
57 The third matter was that, until the time of the Tribunal hearing, the appellant did not mention the taping of MKO broadcasts or his reading of MKO materials. The appellant sought to explain this by saying that he was questioned differently in the Tribunal hearing and so had answered differently. The Tribunal accepted that the appellant was not directly asked about his political activities in Iran at his departmental interview and that questions asked in different sequences to those actually used could have led to more detailed answers from him. However the Tribunal also noted the omission of any reference to these political activities in what was an otherwise detailed statutory declaration prepared by the appellant. The Tribunal considered that he had failed to give a satisfactory reason for the omission and observed that:
"The Tribunal therefore has some doubts about the credibility of this claim, and notes too that if this evidence is fabricated, this throws some doubt on the credibility of the applicant's claims as to having been a MKO supporter and/or found to have had MKO pamphlets in his possession." (Emphasis added)
58 The Tribunal did not accept that the explanation as to his failure to mention the matter before the Tribunal hearing, and found it was not "plausible" that the appellant would have omitted the claim if it were true.
59 The fourth matter was that while the appellant was able to expand on the goals of the MKO at the hearing he was far less able to do so in the departmental interview. It was suggested that this "could" indicate recent reading so as to bolster his credibility as an MKO supporter.
60 The fifth matter referred to was that the appellant's alleged journey out of Iran appeared "implausible" having regard to the distance covered and modes of travel referred to by the appellant.
61 The final matter noted by the Tribunal was that the appellant said that he last spoke to his family two weeks before the hearing and yet they did not mention any adverse or unusual incidents as having occurred, such as a visit from the authorities or enquiries in relation to the appellant's whereabouts. The Tribunal found that this lack of activity was "unusual" if in fact the appellant had been detained for three months as an MKO suspect and had escaped.
62 Having referred to the above six matters the Findings and Reasons then conclude:
"On the one hand, the Tribunal is mindful of the need to give the applicant the benefit of the doubt. The Tribunal is also mindful of the fact that the applicant has been consistent in his claim as to the reason which provoked his detention and his subsequent alleged flight from Iran. Also, the country information as to Iran indicates that the Iranian authorities do in fact target people suspected of supporting the MKO, and that the authorities were especially vigilant towards the MKO after the MKO assassination of Sayyad Shirazi. The Tribunal is also mindful of the seriousness of applicant's claims, and therefore grave consequences if the Tribunal incorrectly assesses his claim as lacking credibility. Also, the Tribunal has considered the fact that the applicant appeared to it at the hearing as genuine, and Mr Massali (letter received by the RRT on 30 December 1999) also thought the applicant be genuine in his claims of detention and torture.On the other hand, the Tribunal notes that it has found above that it is implausible that if the applicant was a MKO suspect in detention, he would have been left unguarded and/or unsecured in hospital, it is implausible that he could have made the journey from Iranshahr to Pakistan as he said, it is most unusual that the authorities would not have contacted his family after his alleged escape if in fact he had escaped, and it is implausible that he would have omitted to state before the hearing that he engaged in illegally taping and distribution of tapes of MKO satellite broadcasts if in fact he had engaged in this activity. After carefully considering the applicant's claims, the Tribunal finds that the applicant is not a credible witness, given his fabrication of the claim as to taping satellite broadcasts, and the implausibility of his escape. The Tribunal does not accept any of the applicant's claims as to his political opinion and detention and torture in Iran for his political opinion as genuine, since even the original claim is tainted by the improbability that he, an MKO suspect, would have been taken to hospital and/or not secured while he was in hospital. After considering all the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of return to Iran, nor that if he returns to Iran, he will face a real chance of persecution for a Convention reason." (Emphasis added)
REASONING BELOW
63 The appellant's application for review was heard by Carr J. His Honour referred to the reasons of the Tribunal and especially to an extract from the second paragraph quoted above. His Honour considered that insofar as the Tribunal had based its credibility findings on the appellant's omission of any mention of the taping of the broadcasts until the hearing there was no error. Justice Carr also rejected a submission from the appellant that the Tribunal had ignored correspondence submitted in evidence by him. His Honour did not consider there was any reviewable error in the Reasons and therefore decided to dismiss the application.
REASONING ON APPEAL
64 The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ):
"If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge `has failed to use' or `has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the `evidence' or which was `glaringly improbable'".
See also Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167 at 179. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the Court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
65 It is important to identify, in this case, the precise question for determination by the Minister and the Tribunal. The relevant question is whether the Minister and the Tribunal could be "satisfied" that the case for refugee status has been made out: see s 65 and s 415 of the Act. The High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275-277 (per Brennan CJ, Toohey, McHugh and Gummow JJ) considered this requirement of satisfaction and observed that the decision under review is of a subjective nature and is not the same as a review of an entirely objective determination of refugee status. This distinction underlies the need for care when viewing the decision of the Tribunal, especially in relation to the question of credibility, because the review is as to the satisfaction of the Minister or his delegate and not as to the determination of the Minister or the delegate.
66 The reasoning of the Tribunal indicates that the rejection of the appellant's evidence as to his political opinion and activity was based on a perceived inconsistency between his evidence and what the Tribunal inferred was likely to have occurred and the difficulty the Tribunal had accepting the appellant's version of his journey from Iran. The impression created by the appellant was that he "appeared" to be genuine at the hearing. However, the summary of the reasoning contained in the two paragraphs of the Tribunal decision quoted above indicates that the decision-maker considered that the alleged circumstances of his escape, including his ability to leave the hospital and the taping of the satellite broadcasts, were so far out of accord with what was likely to occur and the factual circumstances that they could not be accepted. This conclusion affected the appellant's credibility to such an extent that it was seen to justify rejection of his case. The determination as to credibility engaged in by the Tribunal essentially involved an evaluation and conclusion as to whether one group of considerations outweighed another group. This is a question of fact and degree. The Tribunal did not simply dismiss the appellant's contentions out of hand, but considered, and in one instance accepted, parts of the appellant's evidence. This was in relation to his explanation of the discrepancies between his claims at the interview and his evidence at the hearing.
67 There is one aspect of the approach taken by the decision-maker in the present case which gives us some cause for concern. It is this. Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant's account to be "implausible" or "highly unusual" does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.
68 Of the matters related to credibility three appear to be somewhat tenuous if taken individually. The view that it may be "highly unusual" that a detained sick member of the MKO would not be handcuffed to the bed or locked into his hospital room is largely speculative. There was no evidence to that effect and the inference by no means necessarily follows from the available evidence. In addition, the possibility that the appellant may have read up on material to improve his case after the initial interview appears also to be largely a matter of conjecture. Finally, the calculations and estimates as to the mode of flight from Iran, if taken in isolation, also appear somewhat inconclusive.
69 Although some of the specific matters referred to by the Tribunal in this case, if taken separately, may not in themselves be sufficient to warrant a conclusion that the appellant's evidence should not be accepted, we consider that, on the cumulative weight of the matters referred to by the Tribunal, it was open to the Tribunal to reach its conclusion as to credibility. We find no substance in the grounds of appeal that the Tribunal misapplied the law, or that there was no evidence to justify the decision. There was evidentiary material on which it was open to the Tribunal to reach its final conclusion. This evidence is discussed in the six matters noted in our reasons and considered in detail in the Findings and Reasons of the Tribunal.
70 Contentions were raised by the appellant to the effect that the Tribunal failed to give sufficient weight to the evidence of prior torture experienced by him but these contentions invite the Court to decide the merits of the Tribunal decision and this is not open to the Court on this application which is for judicial review of the decision of the Tribunal.
71 Since this appeal was heard the High Court has handed down its decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. In that case the Court considered in some detail the operation of s 476 and McHugh, Gummow and Hayne JJ with whom Gleeson CJ agreed, when referring to the concept of "jurisdictional error" said in par 80:
"'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive ... . Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law ...."
72 In the present case we do not consider that the reasoning of the Tribunal discloses any error of the type referred to in the above paragraph.
73 We agree with the primary Judge that no error of law or principle has been made out.
FRESH EVIDENCE
74 On the hearing of the appeal the appellant sought to adduce evidence which was not before the Tribunal or the Judge below. The material sought to be placed before the Court is a facsimile sent on 18 September 2000, after both the decision of the Tribunal and of Carr J. We decided not to admit this material because it was not before the Tribunal and could not, in our view, provide any basis for alleging error on the part of the Tribunal such as to warrant judicial review.
75 For the above reasons the appeal is dismissed with costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin and RD Nicholson . |
Associate:
Dated: 22 June 2001
The Appellant appeared in person (by video-link). |
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Counsel for the Respondent: |
P Macliver |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
29 November 2000 |
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Date of Judgment: |
22 June 2001 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2001/679.html